Raju @ Ankush Laxman Meshram vs State Of Mah. Thr. Pso Sakkardara ...
2017 Latest Caselaw 6906 Bom

                                                    1                             Judg.070917 apeal 512.03.odt 

                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
                                     NAGPUR BENCH : NAGPUR.

                                            Criminal Appeal No.512 of 2003

                Raju @ Ankush s/o Laxman Meshram,
                Aged about 25 years, Occ.- Labour,
                R/o.-Shivankar Nagar Zopadpatti, Nagpur.                       ....  Appellant.

                                                            -Versus-

              State of Maharashtra,
              through P.S.O. Sakkardara Police Station,Nagpur.          ....  Respondent.
              --------------------------------------------------------------------------------------------------
              None for appellant.
              Mr. N.H. Joshi, Additional Public Prosecutor for State.
              --------------------------------------------------------------------------------------------------
                                                               Coram : Mrs. Swapna Joshi, J.

th Dated : 07

September, 2017.

ORAL JUDGMENT

This appeal has been preferred by the appellant/accused

no.2-Raju @ Ankush Laxman Meshram against the judgment and order st passed by the learned 1 Adhoc Additional Sessions Judge, Nagpur in

Sessions Trial No.132 of 2001 delivered on 15-07-2003, thereby the

learned trial Judge had convicted accused no.2 under Section 324 of the

Indian Penal Code and sentenced to suffer rigorous imprisonment for two

years and to pay a fine of Rs.500/-, in default, to suffer rigorous

imprisonment for three months.

                                                     2                             Judg.070917 apeal 512.03.odt 

             2]                Initially,   accused   no.1-Raj   Natthuji     Bangale     and   accused 

No.2-Raju alias Ankush Laxman Meshram were tried by the learned trial

Judge for the charges under Sections 294 and 307 r/w 34 of IPC.

However, accused no.1-Raj Bangale was acquitted by the learned trial

Judge and accused no.2 who is the appellant herein was convicted as

aforesaid.

3] I have heard Mr. N.H. Joshi, the learned Additional Public

Prosecutor for the State. The appellant and his Counsel remained absent,

(the appellant hereinafter will be referred as 'accused no.2').

4] The facts leading to prefer this appeal can be summarised as

under :-

Complainant Vishal Gajbhiye (PW-2) was working in Laxmi

Hardware Shop belonging to accused no.1. After working there for five

months, he left the said shop and joined Padmakar Still Hardware Shop.

It is the case of the prosecution that, due to the said change by Vishal

(PW-2), accused no.1 got annoyed. On 26-12-1999, at about 12.30 pm,

Vishal (PW-2) along with his friends went to Laxmi Hardware. At that time,

accused no.1- Raj Bangale asked Vishal as to why he was working with

Padmakar Still Hardware Shop. The accused no.1 then abused and

slapped Vishal. On this Vishal got frightened. He did not lodge any

complaint to the Police Station. On the next day i.e. on 27-12-1999 at

about 4.45 pm, PW-2-Vishal was unloading the vehicle & his companion

Shailendra had gone for taking meal. At that time, suddenly accused

No.2-Raju alias Ankush Laxman Meshram who was working in the shop of

3 Judg.070917 apeal 512.03.odt

accused no.1 came along with his two associates armed with chain and

other weapons and assaulted PW-2 on his left eye, left hand and right

rib by means of chain and Gupti. PW-2-Vishal rushed to the shop. At that

time, the owner and the servant in the shop rushed to that place.

However, all the three accused ran way from that place. PW-2 was

taken to the Police Station by his employer (PW-5) and then PW-2 was

taken to the hospital for medical treatment.

5] At the relevant time, PSI-Ashok (PW-10) was attached to

Sakkardara Police Station. He referred injured Vishal to the Government

Medical Hospital. He also accompanied with Vishal to the hospital and

then he recorded the complaint of Vishal (Exhibit-19). Thereafter, PW-10

returned to the Police Station and registered the offence. On the next day,

PW-10 visited the place of incident and conducted the spot panchanama.

The further investigation was carried out by PSI-Mahesh Chate (PW-9).

On 29-12-1999, accused No.2-Raju alias Ankush Laxman Meshram

showed his willingness to point out the place where he had concealed the

weapon Gupti. The memorandum panchanama was recorded at

Exhibit-36. Thereafter, at the instance of accused No.2-Raju alias Ankush

Laxman Meshram, weapon Gupti was seized under panchanama

(Exhibit-37). PW-9 then sent the accused persons to the Medical

Hospital for getting their blood samples. PW-9 took charge of the

clothes of accused No.2-Raju alias Ankush Laxman Meshram as well as

the clothes of accused no.1 under different panchanamas. PW-9

recorded the statements of the concerned witnesses. He also took charge

4 Judg.070917 apeal 512.03.odt

of the clothes of victim (PW-2). After completion of the investigation, he

filed chargesheet in the Court of JMFC. The learned trial Judge framed

the charge. After conducting the trial and on analysis of the evidence, the

learned trial Judge has convicted accused No.2-Raju alias Ankush

Laxman Meshram as aforesaid.

6] Mr. N.H. Joshi, the learned APP contended that the learned

trial Judge has rightly convicted accused No.2-Raju alias Ankush Laxman

Meshram on relying upon the evidence of the witnesses.

7] It is well settled that the testimony of the sole eye witness

can be relied upon provided it is consistent, cogent and trustworthy. With

the assistance of the learned APP, I have gone through the case papers

carefully. The prosecution has heavily relied upon the testimony of Vishal

(PW-2), Dr. Pradeep (PW-8) the Medical Officer and Mahesh (PW-9) the

Investigating Officer. Mohmad Hanif (PW-1) is the alleged eye witness

and the panch on the point of recovery of weapon, who turned hostile and

did not support the case of the prosecution. So far as the testimony of

injured Vishal Gajbhiye (PW-2) is concerned, he was working in Laxmi

Hardware Shop which is belonging to accused No.2-Raju alias Ankush

Laxman Meshram. He left the job and joined Padmakar Steel Hardware

Shop at Darshan Colony, Nagpur. On the date of incident, at about 4 to 5

pm, he brought three wheeler from the costumer in the shop of

Padmakar Hardware. One Shailendra Wasnik was with him. He had

brought Metal (Gitti) in the said three wheeler. After stopping the auto

rickshaw, he got down from it and Shailendra then sat on the driver's

5 Judg.070917 apeal 512.03.odt

seat. PW-2 stated that, he was unloading the said auto rickshaw. At

that time, somebody patted his back, so he turned back. He noticed

accused No.2-Raju alias Ankush Laxman Meshram armed with Gupti and

two more boys with him. Accused No.2-Raju alias Ankush Laxman

Meshram gave a blow of Gupti on his abdomen below the left side of

chest. The boy who was with accused No.2-Raju alias Ankush Laxman

Meshram had a chain with him. He gave a blow of said chain to him so

that he caused injury to his left eyebrow. PW-2 started running towards

the opposite side of the shop. There was a cycle shop in front of the

Padmakar Hardware Shop. The owner of the said cycle shop stopped

him.

8] PW-2 deposed that accused No.2-Raju alias Ankush

Laxman Meshram and two boys came near him. The third boy was with

iron pipe. Accused No.2-Raju alias Ankush Laxman Meshram caught

hold him and other two boys assaulted him by means of iron chain and

iron road. They carried him towards the Pan stall. The owner of

Padmakar Hardware Shop and 3 - 4 boys were standing at the Pan Stall

rushed towards him. In the meantime, accused fled away from the place

of incident. Thereafter, the owner of Padmakar Hardware Shop carried

him to Sakkardara Police Station. However, he was in unconscious

condition in the Police Station. He regained his consciousness in Medical

Hospital. Thereafter, the Police recorded his complaint (Exhibit-19). PW-2

identified Gupti 'article A', as a weapon, by which weapon he was

assaulted by the accused persons. His clothes were also taken charge by

6 Judg.070917 apeal 512.03.odt

the Police.

9] The testimony of PW-2 supported the case of the

prosecution and in his cross examination it reveals that there are

improvements in his version as compared to his complaint (Exhibit-19).

The testimony of PW-2 to the effect that he saw accused No.2-Raju alias

Ankush Laxman Meshram armed with Gupti and he gave a Gupti blow on

his abdomen below the left side of his chest is an improvement. Similarly,

this is also an improvement in the version of PW-2 that, the boy who was

with accused No.2-Raju alias Ankush Laxman Meshram had chain with

him, he gave its blow on him and it hit to his left eye brow. The further

improvement in his version is that accused No.2-Raju alias Ankush

Laxman Meshram and two boys came near him and the third boy was

armed with iron pipe. On comparing the testimony of PW-2 with his

complaint (Exhibit-19), it is noticed that, there are material improvements

in his version as regards the roles played by accused No.2-Raju alias

Ankush Laxman Meshram and his associates. It is also not clear from the

testimony of PW-2 as to whether the accused No.2-Raju alias Ankush

Laxman Meshram was assaulted by means of Gupti on his abdomen. It

is not clear from the evidence of PW-2 as to how exactly the incident of

assault occurred. It was suggested in the cross examination of PW-2 that

he was medically unfit to give his statement as he was injured and

admitted in the hospital in unconscious condition, which he denied. The

testimony of PW-2 is not in consonance with the complaint (Exhibit-19) & it

does not inspire confidence, in view of the discrepancies, which go to the

7 Judg.070917 apeal 512.03.odt

root of prosecution case.

10] Mahesh (PW-9), the Investigating Officer has specifically

stated that, PW-2 was brought in injured condition by his employer with

the Police Station. PW-9 referred him to the Government Medical College

and Hospital. It appears that as the complainant was not in a condition to

give statement in the Police Station, therefore, his statement was recorded

in the hospital. In this context it is significant to note that, in his

examination in chief itself PW-2 stated that no enquiry was made with

him in the Police Station as he became unconscious and he regained

consciousness in the hospital and after regaining consciousness the

Police recorded his complaint. Significantly, the Medical Officer who

examined victim (PW-2) has not been examined by the prosecution.

There is nothing on record to show that at the time of recording the

statement, PW-2 was in conscious condition to give his statement. This

must be the reason that the testimony of PW-2 is full of improvements

which go to the root of the case and makes the entire prosecution case

doubtful. The testimony of PW-2 is not corroborated with the testimony of

alleged eye witness who turned hostile and did not support the

prosecution case.

11] Dr. Pradeep (PW-8) the Medical Officer has on the basis of

the bed head ticket issued injury certificate of PW-2. According to him,

PW-2 was hospitalized for two days and he has noticed the following

injures on his body :-

                                                     8                             Judg.070917 apeal 512.03.odt 



                           "1)         Lacerated wound, left side forehead 2 x ½ cm.

                            2)       lacerated wound, over face just left of nostril 
                                    1 x ½ x ½ cm.
                            3)     Stab wound right side chest below  and lateral 

wound nipple with air entry diminish/right side in infra memory region.

                            4)      Black eye left side."


             12]               PW-8 stated that injury nos. 1 and 2 can be caused by  hard 

and blunt object and injury no.3 can be caused by sharp object.

Interestingly, PW-8 further stated that he examined the weapon Gupti and

the injury nos. 1, 2 and 3 mentioned in the certificate can be caused by

the said Gupti. It appears that PW-8 was confused. Therefore he once

stated that injury 1 & 2 can be caused by hard & blunt object & at the

same time he stated that injury 1 & 2 can be caused by Gupti. PW-8

stated that injury no.3 is a grievous injury and in ordinary course the

injuries was sufficient to cause death. In view thereof, much reliance

cannot be placed on his testimony.

13] The Chemical Analyser's report does not throw any light on

the aspect of finding of blood stains on the alleged weapon Gupti, the

clothes of the victim and the clothes of appellant no.2. The blood stains

are not noticed on the clothes of accused No.2-Raju alias Ankush

Laxman Meshram. On careful scrutiny of the evidence led by the

prosecution, no reliance can be placed. The testimony of victim (PW-2)

himself is shrouded with discrepancies. No reliance can be placed on his

testimony. The prosecution has not brought on record any convincing

9 Judg.070917 apeal 512.03.odt

evidence to show that as to who is the author of injuries received by

PW-2.

14] In view of above, it is held that the prosecution has failed to

prove its case beyond reasonable doubt. In these circumstances, the

benefit of doubt is to be given to the appellant. The learned trial Court has

not properly evaluated the evidence led by prosecution. In view thereof,

the judgment and order passed by the learned trial Judge needs to be

set aside. Hence, the following order:-

O r d e r

(a) Criminal Appeal No.512 of 2003 is allowed.

(b) The judgment and order dated 15-07-2003 delivered st by 1 Adhoc Additional Sessions Judge, Nagpur

in Sessions Trial No.132 of 2001 is quashed and

set aside.

(c) The appellant is acquitted of the offence under

Sections 324 of I.P.C.

(d) The bail bond furnished by the appellant stands

cancelled.

(e) The fine amount, if any, deposited by the appellant be

refunded to him, if not withdrawn.

(f) Muddemal property be dealt with as directed by Trial

Court after the appeal period is over.

JUDGE Deshmukh